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NJ High Court Could Upend Crucial Judicial Stop-Gap

Law360

April 23, 2015

The New Jersey Supreme Court is scheduled to hear a case next week involving the long-standing use of retired judges (who are 70 or older) for temporary assignments. According to this article, "The high court will hear arguments in criminal defendant James Buckner's challenge to the "recall" of onetime judges who have reached a constitutional retirement age of 70, which produced a split, published decision from the state Appellate Division last year. There's no question that the stakes are high, according to Peter Verniero, a former state Supreme Court justice and state attorney general now with Sills Cummis & Gross PC.

'Its outcome will affect the operation of the entire judiciary, and I say that because the court system relies on a great number of recall judges, and by and large, those judges perform ably and with distinction,' Verniero said. 'Over time, the reliance on recall judges has increased, and it's now become an integral part of the judiciary.'

Preserving Buckner's nine-year prison sentence, a 2-1 majority of the appellate court backed the constitutionality of 40-year-old statutory language that empowers the chief justice to deploy retired judges over the retirement age. A 73-year-old recall judge presided over Buckner's trial for alleged robbery and aggravated assault and denied a pretrial motion for disqualification.

The statute at issue had gone unchallenged for decades. Lawmakers in 1973 passed legislation that allowed for the temporary use of retired judges under the age of 70 and updated the law two years later to include judges over the retirement age.

'That was a law passed by the Legislature, signed by the governor, and now you have the court system implementing it,' Verniero said. 'This is one of those cases where all three branches of government seem to have agreed on an approach, the question being: Is that approach constitutional?'"